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Though death sentences nationwide are on a steady decline, Los Angeles, Orange and Riverside Counties are keeping California firmly rooted in the Dark Ages with 2009’s record number of execution orders.

California in the Lead

According to a recent ACLU study, even “Hang’em High” Texas with its 11 death verdicts couldn’t keep up with L.A.’s 13. The difference, of course, is that Texas actually kills condemned people while California has been on a temporary death hiatus since it executed Clarence Ray Allen in 2006.

Apparently, the state can’t find a licensed doctor willing to violate the Hippocratic Oath by intentionally killing a human by lethal injection. It seems many doctors find the Oath’s #1 precept, “First, do no harm,” to be at odds with the job’s #1 requirement, “First, pump the patient full of poison until his heart stops,” so this position continues to be one of the very few jobs remaining on California’s “help wanted” list.

But, doctors aren’t immune to California’s current unemployment crisis. We are just one unemployed doctor’s rationalization away from polishing up the gurney and clearing the IV tubes.

According to the California Dept. of Corrections and Rehabilitation, the state also leads the nation with 701 prisoners on its death row. If L.A. and her sister counties continue to hand out death verdicts at their 2009 rate, and the job of executioner remains unfilled, San Quentin will be forced to add a few wings to its already severely overcrowded death row. Chowchilla, the state’s death row for women, is holding steady at 16, with the most recent addition of Cathy Lynn Sarinana in 2009.

Nationwide, there are about 4,000 people on death row. With Belarus the only European nation still employing capital punishment, and the rest of the Americas carrying out zero executions in 2009, the Killer Countries Club’s membership has been reduced to such bastions of human rights as China (the world leader), Iran, Yemen, Saudi Arabia and us.

The Innocence Problem

According to Amnesty International, since 1973 over 130 people have been released from American death rows because they were proved to be innocent. Nine were exonerated in 2009 alone. These were the cases that happened to catch the attention of someone or organization that gave a damn. What about the others who weren’t lucky, or literate enough to bring attention to their cases?

All arguments regarding the death penalty—efficacy, racial disparity, deterrence, morality, etc.— pale in comparison to the inescapable conclusion drawn from these exoneration stats: The United States has executed—and continues to execute—innocent people.

For those who claim that the “timely” exoneration of death row innocents proves that the system works, consider the following story.

In 1981, Leonel Herrera was convicted of killing a police officer in Texas, and sentenced to die. Twelve years later, Herrera, who had professed his innocence from day one, was put to death. His last words were, “I am innocent, innocent, innocent. I am an innocent man, and something very wrong is taking place tonight.”

One year before the execution, convincing new evidence surfaced, strongly indicating that the actual killer was Herrera’s brother, Raul. The evidence included affidavits from eyewitnesses and the recantation of original trial witnesses.

One affidavit came from Raul’s attorney, who swore Raul had confessed to him that he was the cop killer, and one was written by Raul’s son, Raul Jr., who, though nine years old at the time, clearly remembered seeing his dad shoot the policeman.

This is how the system worked for Leonel: Texas determined that the new evidence was discovered too late because in Texas new evidence must be presented within 30 days of sentencing.

The U.S. Supreme Court ruled 6-3 that Herrera was not eligible for “federal relief based on newly discovered evidence of actual innocence, when the defendant’s original trial had been free from procedural error.” In other words, Leonel Herrera was put to death on technicalities.

For more examples of likely mistaken executions, check out the National Coalition Against the Death Penalty’s (NCADP) “Shouting From the Rooftops.” Granted, NCADP is clearly an anti-death penalty organization, but the stories here are troublesome, to say the least, and have a mighty loud ring of truth.

Sacrificing Innocent Folks in the Name of Justice

This begs the question at the very heart of the death penalty debate: Is it morally OK to sacrifice a few innocent people for the societal benefit of the death penalty? Maybe there’s an acceptable ratio; say, one innocent life for every 700 guilty; 4 innocents for every 2,000 guilty. Higher? Lower?

If you think sacrificing an innocent person now and then is acceptable, you probably have lots of company. You definitely have a kindred spirit in Steven D. Stewart, Prosecuting Attorney for Clark County, Indiana.

“Our system of justice rightfully demands a higher standard for death penalty cases,” writes Stewart on his web page , however, the risk of making a mistake with the extraordinary due process applied in death penalty cases is very small, and there is no credible evidence to show that any innocent persons have been executed at least since the death penalty was reactivated in 1976. The 100+ death row inmates ‘innocent’, ‘exonerated’ and released, as trumpeted by anti-death penalty activists, is a fraud. The actual number of factually innocent released death row inmates is closer to 40 [italics mine] and in any event should be considered in context of over 7,000 [italics mine] death sentences handed down since 1973.”

Stewart closes with this interesting comparison: “The inevitability of a mistake should not serve as grounds to eliminate the death penalty any more than the risk of having a fatal wreck should make automobiles illegal.” Stewart’s car crash metaphor omits the fact that there is an alternative to his “fatal wreck” called “life with no possibility of parole.”

But, he has found an “acceptable” innocent-to-guilty, killing ratio: 40 innocents to 7,000 guilty sounds about right to him. I wonder if that ratio would still be OK if one of those 40 innocents happened to be Stewart’s son or brother, or maybe Stewart himself.

We read about prosecutorial and law enforcement misconduct regularly—everything from brutally forced confessions, witness intimidation, to planted evidence and beyond. We know about jailhouse informants—people whose relationship with the truth is strained enough without prosecutors offering lenient treatment in exchange for the right testimony. We’ve heard stories about defense counsel in capital cases falling asleep during proceedings, or showing up drunk in court. If you believe for one moment that there have only been 40 innocent people sentenced to die in America since 1973, then you either pay no attention to current events, or you’re running for D.A. in some Indiana county on a “tough on crime” platform.

The Only Option

National statistics show that Americans are growing suspicious of the death penalty, and getting tired of paying for it. When asked if they would do away with capital punishment if life without parole meant “permanent imprisonment with no chance of getting out–ever” the majority answered “yes.” Intriguingly enough, there are a number of states that refuse to give juries that option.

On the other hand, there are 15 states that have no death penalty or resultant spikes in capital offenses.

I love my family and friends far too much to support any system that would give known, vicious sociopaths a chance to get anywhere near them. But, I can’t support a penalty that kills innocent people. Fortunately, we have the option of life with no parole in our state. We also have the comforting fact that in 25 years, not one California prisoner sentenced to life without parole has gotten out of custody; not one. In California capital cases, life with no parole means exactly what it says, and should be the only option.

Our justice system is just too imperfect for such a perfectly final punishment.